Wednesday, January 27, 2016

Thomas Geoghegan, Only One Thing Can Save Us: Why America Needs a New Kind of Labor Movement, (New York: The New Press, 2014), 244 pages, $25.95.

Labor lawyer and union attorney Thomas Geoghegan has returned with another book that starts with a question. “Do you think labor will ever come back?” Geoghegan never answers yes or no, but as the title suggests, he argues the economy and the middle class will never do well if the labor movement does not revive.

The book has twelve chapters divided into three sections. The six chapters in the first section identify and discuss a variety of specific problems that plague the labor movement and the middle class.

We learn early the author is sixty-five years old and thinking how much longer he will have to work to keep living in the disappearing middle class. The stories and discussion in Chapter One introduce matters Geoghegan takes up later in detail. Include in this list the Democratic party that does so little for labor; that more education alone will not reduce inequality; that Senate filibuster rules and gerrymandering U.S. House districts help prevent labor law reform; that organized or unorganized labor should consider a variety of hit-and run political style strikes and disruptions. And most important America has to restore the labor movement to keep what’s left of the middle class.

Chapter two, entitled “There’s No Middle Class,” suggests the low and stagnate wages eroding the middle class result from deliberate policies of business. Management expects to hire and fire at will without regard for the effect on the middle class. Discussion compares practices and attitudes at American companies like Boeing and Caterpillar with business operations in Germany. In the U.S. innovation comes only from the top; in Germany it also comes from the bottom.

In Chapter three Geoghegan declares labor too weak to fight, at least with the old and conventional methods. Too many legal and constitutional limitations along with too much hostility in bad press generate fear or indifference in the working class. Here he describes building a labor movement that targets short-term strikes and disruptions.

Geoghegan continues with the disruption argument in Chapter four by writing about the 2012 Chicago teachers strike. This chapter is the first of two lengthy discussions of Chicago’s public education, which comes up again in Chapter nine. Georghegan lives in Chicago and he was the attorney for the Chicago teachers union for two years before the strike so readers get a detailed discussion of education and labor abuses by Democrat Rahm Emanuel and his cronies. He concludes strikes today must be political strikes, as opposed to demands for economic negotiations. With disruption and publicity the Democrats might get embarrassed enough and nervous enough to actually do something for labor.

In Chapter five Geoghegan offers a personal story from his run for the U.S. House in a Chicago district. He tells readers only 11 thousand votes were cast for the winning candidate when there were more union members than that who could have given him a victory. Here he blames labor leaders when the rank and file split their vote or didn’t vote at all; he hopes they will stop fretting about right to work states and confront reality. He makes the charge that organized labor acts at times like a bunch of elite academics.

Next lawyer Geoghegan becomes economist Geoghegan by discussing John Maynard Keynes book, General Theory of Employment Interest and Money. The General Theory is not a general theory at all, but a theory of special cases. The book was published in 1936 in the middle of worldwide depression, but economists still insisted economies operate as self-regulating markets where unemployment would be temporary until lower wages and interest rates restore full production and employment. Keynes identified potential conditions where markets fail and do not work. He cautioned falling wages might not restore full employment for decades, or ever.

Part Two entitled Education and Democracy has three chapters. Here Geoghegan ask why demoralize the party base by pushing college education as a savior for the working class? Census data show about 35 percent of adult Americans have a BA degree or above and Bureau of Labor Statistics data show only about 25 to 26 percent of Americans jobs need college degree skills. By acting like college degrees will solve the country’s problems, Obama and the Democratic Party ignore and disenfranchise 65 percent of the working class. The Democratic base votes Republican and Geoghegan argues they will continue unless the Democrats work to restore the labor movement in the way the government built the labor movement in the great depression.

Chapter eight reviews the educational principles of John Dewey, an early twentieth century writer and educator. Dewey believed schools in a democracy should teach children to act collectively as part of a community. Successful education gives children the confidence to extend democracy everywhere into politics, work, schools, and neighborhoods. Chapter nine looks at the dismal record of employee participation and democracy in the workplace and at the growing demand by corporate America to privatize the schools.

Part III has three chapters of hope and policy. Geoghegan begins this section by declaring labor must come back as something different if it can come back at all. The new labor movement needs to involve members who can and will do more for themselves and with less dues revenue.

Then he makes three proposals for change. The first suggests amending the Civil Rights Act of 1964 by adding to the list of discrimination from race, creed, color, age, and gender with the phrase “and on the basis of union membership.” The legal differences of labor law and civil rights law get a thorough review and evaluation. Here there is excellent discussion of Martin Luther King’s efforts to link civil rights with the goals of organized labor and end the legacy of slavery.

The second proposal wants to end the filibuster rule, which Geoghegan thinks of as the “ultimate” labor law in that historically it assured the defeat of Congressional efforts to end slavery, the ultimate system of cheap labor. More recently it was used to defeat labor law reform and to neutralize labor law enforcement by blocking nominees for the National Labor Relations Board. Here discussion becomes a speculative conversation of problems and possibilities with an emphasis on hope.

The third proposal wants to change corporate law, which is broken because there is no stockholder influence, nor input from employees that work in a dictatorship. Geoghegan recommends that states require corporations to have elected work committees to monitor compliance with labor law and contracts, or to have employees serve on corporate boards to increase managerial accountability. Here the pros are assumed; cons do not exist in a discussion of political possibilities and the chances it can result.

That concludes Chapter ten, which brings two more proposals for change in Chapter eleven, entitled if “All Else Fails.” The two additional proposals are not overt legislation like those in Chapter Ten, but they amount to a change of attitude and practice by organized labor. The first proposal recommends that organized labor work toward more employee participation in managerial decision making. He describes German labor relations that include a thorough discussion of the UAW efforts to organize works councils in the VW plant at Chattanooga, Tennessee.

The second proposal in Chapter Ten suggests giving up on exclusive representation and organizing a minority in the workplace willing to pay their dues. Here Geoghegan raises a variety of political, legal and practical pros and cons. He parcels blame to the right wing that wants to bust organized labor, and to organized labor for getting complacent with the money from agency shop fees and exclusive representation. There is also some more dark discussion of Supreme Court rulings. Geoghegan finishes part III with a short Chapter Eleven confined to hope, as the title “Why We Live in Hope” implies.

The book has the elements of a serious academic tract but tilts away from academia in a chatty conversational voice, which could be unique. There is technical discussion of labor law. Also the book does not use references or supply a bibliography, although reference to some authors and titles appear in the text. The book does have an index.

Geoghegan likes to summarize the merits and demerits of back and forth conversations with peers, colleagues and friends. At one point he is having dinner with a friend in a Washington restaurant and the conversation turns to labor reform. He recounts the conversation, but his friend’s conclusions leave him in shock; he did not realize how few Democrats in high places are friends of labor.

He also likes to ask questions and sometimes doubts his answers as in “Of course, I’m being ridiculous” and go on to elaborate the complications. He likes to repeat controversial conclusions others tend to avoid and then to add another jab or two for good measure as when he mentions the GOP stole the 2000 election, and then adds but nobody cares.

Books like this need hope and this one has hope, but I also read his first book, “Which Side Are You On?” That book maps out the many problems for organized labor as of 1991 with a clear discussion of the elements of labor law and the problems of negotiating and administering collective bargaining contracts. He did that in much the same conversational style he uses now, but I do not recall lots of optimism in his earlier work. In the twenty-five years since 1991 labor, and organized labor, has continued in decline, but I feel relieved he did not measure hope then with hope now. I hope what’s left is not as small as it appears to be in 2016.

Thursday, January 21, 2016

A recent article in the Washington Post from January 14, 2016 wants to know if working-class whites are the GOP keys to the White House? Reporters Philip Rucker and Robert Costa ventured to New Hampshire to find out how the GOP will try to persuade many more white working class Americans to vote Republican. Ted Cruz campaign manager, Jeff Roe said, “Some of them have never voted.” … “If they can be convinced to come out and vote, we win.”

For some decades now the GOP has pushed one policy: cut taxes and spending and everyone will prosper. During the same decades the Democrats have pushed one policy: get education. Go to college and everyone will prosper. Maybe the working class doesn’t vote because they recognize both Republicans and Democrats ignore them with useless slogans?

Campaign Manager Roe is right though, the working class vote could determine an election because they are the biggest voting block of any voting block. Census data shows 65 percent of the working age adult population does not have college degrees, which suggests the Republicans and Democrats have ignored the economic circumstance of at least 65 percent of the working class.

The Democrats lost the working class in the 1980’s when Ronald Reagan got their vote talking patriotism and a selection of social issues like abortion and gun control, along with lower taxes and union busting. President Obama has done next to nothing to get them back. He finally endorsed a higher minimum wage and a tiny improvement in overtime rules, while stagnant wages and the union busting going on around him.

Over the past thirty years the Republicans have done a good job getting the working class worked up and angry with someone, or something, while getting them to forget the low wages they earn from private sector employers. Now though Rucker and Costa assure their readers Republican see the need for new strategies. They quoted Roe again, he told them “The Republican argument can no longer be just about taxes and spending. It’s got to speak to the working poor and the culture.”

Trump told voters in New Hampshire “You people know better than anybody about jobs leaving an area. Look at what happened to you?” He is the bluntest of all the candidates with his opposition to immigration and the shift of jobs abroad. His campaign manager Corey Lewandowski said “People don’t feel like these jobs have disappeared, they’ve been stolen, and they don’t mind if someone is speaking forcefully about taking them back for blue-collar America.”

When Cruz and Trump pitch trade protection and limits to immigration and foreign investment they speak to the working class, but not to business and corporate America. That part of the Republican party wants all the immigration they can get to keep their supply of cheap labor flowing. That part of the Republican Party expects to roam the world looking for investment opportunities in countries with cheap labor. That part of the Republican party ignores decades of $400 and $500 billion dollar trade deficits, and ignores how much U.S. debt and deficit spending supports employment abroad. But then again the Democrats ignore it too.

The idea that Trump and Cruz will take over the Republican Party to impose policies business does not want sounds too far fetched to consider in spite of the polls that show them leading. I find it ironic that Donald Trump would have a television show, the Apprentice, where he casts an imperious eye around the board room table and fires one person on each episode of the show.

Trump knows that Americans work at will, a euphemistic term for getting fired at any time, and for any reason, at the whim of an employer. Could there be anyone who likes to be the boss more than Donald Trump?

The only way to have job rights in the United States is to negotiate an employment contract. Big time athletes and their coaches have them. Movie stars and celebrities get them. Unions negotiate them, but the Republicans work hard to bust organized labor while the Democrats look on, mostly in silence. Private sector unions have sunk to six or seven percent of private sector jobs. Few of the remaining millions who work at will seem to realize unions are the only means available to negotiate job rights or protect their declining standard of living.

The Democrats know that and so do the Republicans. Unions are dead; long live unions.

Tuesday, January 12, 2016

In Friedrichs v. California Teachers Association ten teachers filed suit because they claim that many union stances taken in collective bargaining are bad for public schoolteachers and bad for the children they teach. They want the Court to rule that individuals have a right to choose whether or not they join a union. California and twenty-two other states require them to pay agency fees in lieu of union dues to support collective bargaining.

In all states that have adopted the option of a right-to-work as specified by the Taft-Hartley Amendments to the National Labor Relations Act the matter in question is irrelevant. Those states have already banned unions from collecting agency fees. California is not a right to work state and so anti-union groups like the Center for Individual Rights keep encouraging lawsuits hoping to bust unions.

On the Center for Individual Rights web site, Plaintiffs make a number of statements and claims that ignore two important previous Supreme Court cases: Abood v. Detroit Board of Education from 1977 and Harris v. Quinn from 2014. The new suit repeats the same claims just finished in Harris v. Quinn.

Abood v. Detroit Board of Education

In the case Abood v. Detroit Board of Education some public school teachers objected to the requirement in the Detroit Public School's collective bargaining agreement that required non-union members to pay a service charge in lieu of union dues. The Supreme Court allowed the requirement as payment for a non-member's "fair share" as long as the union used the non-member funds only for contract negotiations, contract administration and grievance procedures rather than for political or ideological activities.

Section 9(a) of the National Labor Relations Act (NLRA) of 1935 as amended and administered by the National Labor Relations Board requires the union to represent all employees in the bargaining unit not just its members following a majority vote in a democratic election to establish a union. Because United States labor law forces a certified union to represent all employees the Supreme Court declared a compulsory surcharge fairly distributes "the cost of the union among those who benefit" and "counter acts the incentive that employees might otherwise have to become 'free riders.' "

The court acknowledged in its Abood opinion that such a "fair share" provision has an impact on public employee first amendment rights of free speech, which is why they did not allow an agency fee to include any union dues that support lobbying or political expenses. The Supreme Court requires a partial refund of agency fees equal to the percentage of a union budget that goes for political uses. Plaintiffs in the new Friedrich v. CTA suit acknowledge the refund. I also note that corporate shareholders confront the same free speech issues when corporate boards pay to lobby, but without compensation where profits become a lobbying expense.

Harris v. Quinn

In the case of Harris v. Quinn concluded in 2014 the state of Illinois used federal funds for a Medicaid Rehabilitation Program. The Rehabilitation program provides federal funds for states to pay personal assistants chosen from a state approved pool of personal assistants who provide the in-home care. Three personal assistants in a bargaining unit of the Service Employees International Union petitioned a federal court for an injunction to end the non-union agency fee as a violation of their rights to free speech under the constitution. Petitioners wanted the court to abandon the doctrine established in the Abood case.

The Court voted 5 to 4 that the agency fee could apply to “full fledged” employees, only not to the special case of Illinois personal assistants. The majority opinion included a discussion of objections to the Abood opinion, but the majority decided not to overturn it.

In their written opinion the majority admitted “the wages and benefits of personal assistants have been substantially improved; orientation and training programs, background checks, and a program to deal with lost and erroneous paychecks have been instituted; and a procedure was established to resolve grievances arising under the collective-bargaining agreement . . . and we will assume that this is correct.”

Justice Kagen wrote a 25 page dissent that supported the Abood doctrine because “The only point in dispute is whether it matters that the personal assistants here are employees not only of the State but also of the disabled persons for whom they care.” A final point in the minority opinion suggested the majority found it too difficult to write a legal justification to throw out compulsory fees for labor unions when the court has relied on “fair share” rules in deciding cases involving compulsory fees outside the labor context.

Fredrichs v. California Teachers Association et al

In the present case of Friedrichs v. CTA anti union groups refuse to accept Harris v. Quinn when they can develop another claim that might destroy the agency shop in all the states. In Friedrichs v. CTA plaintiffs claim that collective bargaining amounts to a political act even though they admit those in the bargaining unit can get a refund for their part of the agency fee. In this way they want the Supreme Court to agree that contract negotiations, contract administration and grievance procedures are politics, which require a 100 percent refund of agency fees.

The court will have to overrule itself after just two years, since the Harris v. Quinn decision came June 30, 2014. Since both plaintiff and defendant alike know the court acts as a divided political body, the decision could go either way. However, the anti union groups have taken a few liberties in their public statements about their case.

The Center for Individual Rights writes on its web site that in collective bargaining the union claims to speak for all teachers. Instead Federal labor law requires the union to represent all employees in a bargaining unit of a certified union. The claim made by the Center for Individual Rights contradicts Section 9(a) of the Taft-Hartley Act. Section 9(a) reads “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: …”

The labor movement has endured free speech attacks for over a hundred years, nothing is new in Friedrich v. CTA. A hundred years ago business owners blamed strikes on outside agitators. Outsiders would come in and stir up the benevolent owner's happy and contented employees and cause a strike, but he was not going to speak with any labor agitators because he intended to faithfully defend and protect the liberty and free speech for his loyal employees who did not want to join a union.

If employees in a union can be free to drop out as part of a right to work and free speech, then the Supreme Court ought to end the compulsory legal requirement for unions to represent free riders, or really freeloaders. A lawsuit that ends the agency shop but not the “exclusive representatives of all the employees” requires the Supreme Court to deny free speech and free association to unions and their members.

But There’s More

There’s more because one of the plaintiffs in the Friedrich v. CTA suit, a teacher named Harlan Elrich made a variety of personal complaints about unions in an op-ed piece in the January 3 Wall Street Journal. He complains because his “union spends resources pushing for ever-higher teacher salaries.” He favors “decent salaries” but claims teachers are “already well paid compared with everyone else in the Central Valley.”

He complains because the union negotiates policies for “discipline, grievances and seniority” when he knows many of his colleagues are incompetent and the union represents them anyway. It does not seem to occur to him that the union has negotiated a procedure for internal due process to prevent arbitrary firings without cause and that given their legal obligation to represent all employees imposed on them by Federal labor law the union has no choice but to defend all members of the union.

He doesn’t like seniority either because he thinks younger teachers can be better than older teachers, but he ignores that younger teachers are also cheaper teachers and management may find advantage firing higher paid older teachers to replace with lower paid younger teachers, or replace them with even lower paid substitute teachers.

Mr. Elrich adopts each and every point of the upper class attack on teacher unions. His op-ed piece reads like a check list of points supplied by the staff at the Center for Individual Rights or the National Right to Work Legal Defense Foundation. Unions would do better getting their members more involved and lowering their dues, but organized labor will always have to confront divisive people like Mr. Elrich who can’t accept he’s just one of millions in the exploited working class, something he will always be. He seems not to know the wealthy upper class howl with laughter at fools like him.